The minute I tell someone that I help people charged with drinking and driving stay out of jail, I see a significant change in their disposition. Either they light up with glee or they look at me like I’m the filthiest person walking and breathing on this earth. As most attorneys know, you develop thick skin the longer you’re in this legal game.

However, often times, I’m faced with a varied bag of questions. They range from the absurd like “If I’m drinking and driving, and I get into an accident, but it kinda wasn’t my fault, I can’t really get in trouble for that, right?” All the way to the thought provoking, such as “Do you feel that your job as a defense attorney enables the horrible behavior of society?” I find them all entertaining, and I oftentimes play around with an answer just to see the reaction I get. But, there are a few questions that I get asked way too often about DUI’s. In the hopes of shedding light on what a lot of people may want to know, I have outlined a few to appease your appetite to learn.

1. What Should I Do If I’m Asked to take a Field Sobriety Test?

There are a wide range of field sobriety tests including the horizontal gaze nystagmus (eye twitch) test, the walk-and-turn, the one-leg-stand, heel-to-toe, finger-to-nose, alphabet recitation, modified position of attention, fingers-to-thumb, hand pat, etc. Most officers will pick a few out of the above to see how impaired you may be.

Unlike the chemical test where refusal to submit may have serious administrative consequences, you are not legally required to take any Field Sobriety Test. I’m going to keep it 100 though… the reality is that officers have already made up their minds to arrest you when they ask you to take the Field Sobriety Test. The tests are simply additional evidence that can and will be used against you in a court of law. Thus, in some cases, a polite refusal may be appropriate.

2. The Officer Never Gave Me a Miranda Warning — Can I Get My Case Dismissed?

Ha. No. You are absolutely right… the officer is supposed to give a Miranda warning after he arrests you. From a practical standpoint, the police will delay the arrest decision long enough to allow you to make numerous incriminating statements. The only consequence of a Miranda violation is that the prosecution may not use any of your answers to questions asked by the police after the arrest. The wisest course of action is to say nothing regardless of whether or not you have been formally placed under arrest.

The more important warning is the failure to advise you of the state’s “implied consent” law, which is your legal obligation to take a chemical test, and the consequences if you refuse. This can affect the suspension of your license.

3. What Defenses Are There In a DUI Case?

Lack of Driving or Actual Physical Control. Intoxication is not enough: the prosecution must also prove that the defendant was driving a vehicle while under the influence of alcohol or drugs with a BAC of .08 or more. This may be difficult if, as in the case of accidents:

a) there are no witnesses to his or her being the driver of the vehicle.

b) Lack of Reasonable or Articulate Suspicion to Stop or Probable Cause to Arrest. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.

c) Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.

d) Deficient “Implied Consent” warnings. If the officer did not advise you of the consequences of refusing to take a chemical test or gave the prescribed instructions incorrectly, it may affect admissibility of the test results — as well as the license suspension imposed by the motor vehicle department.

e) Subjective Nature of the Offense/Erroneous Nature of the Evidence. Most crimes involve tangible evidence — a quantity of illegal drugs, a body, a gun, a knife, etc. An alleged violation of Operating under the Influence relies almost exclusively on the subjective and unverifiable impressions of the arresting officer. The officer’s observations and opinions as to impairment can be questioned. The circumstances and procedures of the Field Sobriety Tests can also be called into question. The strong tendency of the police officer to reinforce his arrest decision with “facts” that are conveniently corroborative of that decision can be attacked. Also, DUI arrests translate to thousands of overtime dollars for the involved officers. This fact is relevant to a motive on the part of the officer to err on the side of arrest in close cases, and should be brought to the jury’s attention. Furthermore, an alleged DUI violation, having an unlawful BAC, will also rely on test results that are highly questionable. A breath test has one compelling — and erroneous — assumption: that all test subjects are “average.”

f) Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath, or urine testing.

4. What Patterns Do Police Officers Look For When Searching Out Intoxicated Drivers On The Road?

• Negotiating a wide turn
• Straddling along the central marker between the lanes
• Near misses or hitting either another vehicle or an object
• Weaving between lanes
• Driving off of designated highway
• Swerving within the lane lines
• Speeding over 10 mph above the designated speed limit
• Tailgating
• Drifting
• Excessive braking
• Driving against traffic
• Delayed reaction to traffic signals
• Accelerating or slowing down quickly
• Driving without headlights on

5. As a DUI Lawyer, What Would You Do If You Were Stopped For DUI?

• Immediately request an attorney — Ask the officer to note the time of my request
• Refuse to answer ANY questions (other than name and address)
• Produce requested documents… be polite even if the officer isn’t
• Refuse ALL field sobriety tests
• Refuse a breath/blood/urine test (if I was unsure that I was under the legal limit)

ABOUT ME: Prince Williams, Esq. is an AVID lawyer with AVID Law Firm, LLC. A firm that helps people avoid DUI convictions. Call today at 240-561-7433. Let us know how we can help you.